ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  25 June 2019
DOCKET NUMBER: AR20170007264


APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge to an honorable

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   * DD Form 149 (Application for Correction of Military Record)
   * Information Report FACTS:
1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2. The applicant states he served for 9 years and reenlisted twice and received two honorable discharges.

3. The applicant provides an information report which provides a synopsis of his military career.

4. A review of the applicant’s service record shows:

   a. He enlisted in the Regular Army on 18 January 1985 and reenlisted on 7 June 1988 and 7 October 1992.

   b. DD Form 458 (Charge Sheet), dated 26 July 1993, special court-martial charges were preferred against him for:

* one specification for being Absent Without Leave
* one specification for being disrespectful to a senior noncommissioned officer
* one specification for being derelict in his duties
* two specifications for not being at his appointed place of duty
* three specifications for willfully disobeying a lawful order
* 

   c. On 3 September 1993, he consulted with legal counsel and was advised of his rights. Following consultation with counsel, he subsequently requested, a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. In his request, he acknowledged:

* he did not desire further rehabilitation or a desire to perform further military service
* Ii his discharge was approved, he may be discharged with an under other than honorable conditions discharge
* he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge

   d. Consistent with the chain of commands recommendations to discharge for the good of the service with a under other than honorable discharge, on 7 September 1993, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.

   e. On 21 September 1993, he was discharged from active duty under the provision of AR 635-200, chapter 10. He completed 8 years and 7 months, and 29 days of active service during this period of service and he had lost time from 8 July to 12 July 1993. He was awarded or authorized the following:

* Army Achievement Medal
* Army Service Ribbon
* Army Good Conduct Medal (1st Award)
* Kuwait Liberation Medal
* NCO Professional Development Ribbon
* Overseas Service Ribbon with Numeral 2
* Southwest Asia Service Medal with 2 Bronze Service Stars
* Expert Marksmanship Qualification Badge with Rifle Bar (M16)
* Expert Marksmanship Qualification Hand Grenade Badge

5. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
1. 

6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

However, the Board did note that the applicant had prior honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.

BOARD VOTE:


Mbr 1
Mbr 2
Mbr 3

:
:
:
GRANT FULL RELIEF
X
X
X
GRANT PARTIAL RELIEF
:
:
:
GRANT FORMAL HEARING
:
:
:
DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 18 January 1985 until 6 October 1992.”
2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge under other than honorable conditions.



6/26/2019
X 


I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.
   a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge
1. 

and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service.

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